Mike is the CEO of (>CLT) TapDynamics, Inc., a San Francisco-based company and the leading provider of draft beer monitoring solutions for multi-unit bar and restaurant operators. (Did you know that "20 to 30 percent of all draft beer poured at a restaurant is never paid for?" See this article.)

But before Mike brought data capture and analytics to draft beer flow meters, he was an investment banker, working for Banc of America Securities. For a time, Mike also worked in a San Francisco office for Seattle-based Cascadia Capital.

Here's what Mike tells us in the podcast, about investment banking and about himself:

he gave up early on pursuing a career in sports broadcasting

he turned a temp job into a Vice Presidency at Banc of America Securities

an investment banker will never have the passion of any CEO he or she works for

the current controversy over Wall Street pay is misguided

divorce and single-fatherhood have focused his entrepreneurial energy

Entrepreneurs’ Prior Lives is produced and edited by John Solit. Burgess Carleton wrote and recorded the theme for the series. The Mike Cann episode was recorded in Seattle last Thursday.

Pictured: Michael Cann and EPL producer John Solit.

Disclosure, and a solicitation: Joe Harb's and Mike Cann's companies, Quu and TapDynamics, respectively, are clients of mine. I'd like the series to also include entrepreneurs for whom I do not work as a lawyer. Please send me any suggestions . . . or volunteer yourself!

By http://profile.typepad.com/1237764140s22740 //
February 23, 2010
in Legal Docs

Okay, this post is totally for language geeks who love the visual play of text on a page or screen. (If I didn't just describe you, you're excused, and I'll see you next post!)

Here are the rules of the redlining practice I follow and espouse:

1. Redline only text that is actively in play. If language proposed in the other party's redline works for you, "mark" that fact "negatively" by removing the redlining (in the parlance of Word, this is the practice of "accepting changes").

2. View all text, suggested deletions as well as proposed additions, in the middle of the field. Relegating deletions to the sidelines gives too much deference to proposed additions. Deletions are just as important to view in context.

(Confession: I will not review a redline with deletions relegated to the margins. It makes my brain hurt to do so, and I no longer try.)

3. Don't trust Word for redlining. Use DeltaView or another industrial strength comparison app. Unlike Word, DeltaView won't clutter the page with formatting changes and will (ironically, given the name of the ubiquitous Microsoft word processing program) draw your attention only to the words. Formatting changes are best reviewed on a clean page, and need not be redlined.

DeltaView also has the brilliance to mark, in a third color, language that has not been changed from another draft, but has been moved to another place in the document. (Choose green to pick up on the metaphor of recycling.)

4. When encountering the deviant redlining practices of others, take the path of least resistance and generate, for circulation, redlines in the formats they prefer. This may sound counter to the other rules, but isn't; you will yet generate and use the true blue redline for your own review.

While the art of the redline is the sport of an introvert, deployment of redlines is a trade. Say the other party prefers to see all changes from all drafts marked cumulatively until negotiation is done. Fine; Word generates that kind of mess easily enough, doesn't choke on it like it did in the past. Nothing says you must yourself rely on the deviant redlines you circulate.

I'm excited today to launch "Entrepreneurs’ Prior Lives," a podcast brought to you by this blog and by wac6arts.com. The first episode features Joe Harb, the founder of Quu. Joe discusses his prior life as a geotechnical engineer. You can access the show here.

Here's the vision for the series as a whole:

“Entrepreneurs’ Prior Lives” is a series of conversations with startup founders and tech company CEOs — but not about what they are doing now. Instead, discussions are about something memorable from the past. The idea is to insist that the entrepreneur take a break from “pitching” his or her current deal. When we’re lucky, we’ll get an unguarded conversation that may reveal something about how the entrepreneur’s mind works.

The idea came during a lunchtime walk Joe and I took eleven days ago in downtown Seattle. For some reason, Joe told me about the time he saved an orphanage in Lebanon from sliding down a mountain. (We may have gotten on the subject of engineering because of the road construction going on all around us as we walked.) At any rate, Joe's story revealed to me the series that should be, and Joe immediately agreed to make time for a recording.

Web and podcast pro John Solit jumped in to produce the first episode, and I'm dearly hoping to keep him on board as the series develops. My son Burgess Carleton wrote and recorded an original theme for the show, a tune I can't stop humming. To launch, we're using the Podbean platform. It's possible that the show will stay there, perhaps as a media property occupying a space between wac6.com and wac6arts.com. Or perhaps, if and when a critical mass of episodes are in the can, the series will move to a page here on wac6.com.

Please enjoy! And don't miss the "Easter egg" at the end of the podcast (that's insider podcast production terminology I picked up from John).

In my last post, I fantasized about what the Citizens United case might have portended, were Justice Clarence Thomas to have written the majority opinion.

Well, the K&L Gates law firm has already written a memo to help corporations do what they can to realize Justice Thomas's vision.

Here's the bit I like the best:

"Just because a corporation may make an independent direct advocacy expenditure doesn't mean that it should. Since the entity or entities financing independent expenditures must be disclosed, a corporation leading the way against a particular candidate risks alienating a significant block of its potential customer or shareholder base. . . .

"Therefore, most corporations will probably proceed cautiously. If such independent expenditures are made, groups of corporations within an industry may form coalitions or use existing trade associations to support candidates favorable to policy positions that affect the group as a whole. While corporations that contribute to these expenditures might still be disclosed, this indirect approach can provide sufficient cover such that no single contributing entity receives the bulk of public scrutiny."

A kind of "anonymity of the crowd," you might say. Huddled corporate masses, yearning to be heard and not seen.

One more thing: the memo sadly brings home the reality that there will be lawyers on both sides. I had them wearing the white hats in my last post, on the side of shareholders.

In explicating the holding of the Supreme Court's recent Citizens United decision, Stanley Fish shows how the majority actually pulls its punch and engages in the kind of "consequentialist" thinking that animates the incredulous Justice John Paul Stevens's dissenting opinion. The truly principled conservative Justice, Fish reasons, would strike down, not only limits on corporate spending in political campaigns, but also the statutory disclosure requirements that the majority upheld. Only Justice Clarence Thomas, who filed a separate opinion explaining how speech may be chilled or speakers may self-censor if they know they may later face retribution for their speech, eschewed "consequentialist" thinking and played out principle the whole way.

I'm in a "consequentialist" frame of mind myself this morning, imagining, how would anonymous corporate speech impact corporate governance?

Let's suppose Justice Thomas's views were ascendant. It would be unconstitutional, then, for the SEC to require public companies to disclose their political activities. Goldman Sachs, GE, Google, you name them, might soon come to have "black box" expense aggregations, analogous to the secret budgets the federal government uses for intelligence and counter-terrorism activities.

If a public-company shareholder wanted to know what political candidates or voter referenda her or his corporation was supporting, the board of directors might say to that shareholder, "We are protecting you from the ridicule that would fall on your head if anyone actually knew. But don't worry. We've got it under control, and as always we have your best interest at heart." (It's tempting to joke that shareholders would then know as little about corporate campaign expenditures as they now know about executive compensation!)

What about private companies, not subject to the disclosure regimes of the 1934 Act? Might not pesky shareholders wield state corporate codes and common law to inquire about what their company might be "speaking?" (The argument before the state judge could go like this: "We hear what's being said, your Honor. We'd just like to know whether or not we are the ones who are saying it.") Here again, though, the First Amendment might intervene. State corporate codes typically require that shareholders be given access to financial statements; but any expansion of such statutes to effect transparency of corporate campaign expenditures might have to be overturned as unconstitutional.

Lawyers would adapt. What the Supreme Court taketh away by limiting governmental power, we would replace utilizing the power of contract. New protective covenants would become a part of private financings. Political expenditures might be prohibited, except upon approval of the shareholders. It could be a kind of private, Fifth Amendment: "the shareholders of this corporation hereby instruct it to remain silent!"

“[W]hat's the point of protecting the email accounts of
Chinese human rights activists if you tell the rest of the world who those
people are talking to?” - Evgeny Morozov, foreignpolicy.com

When launching its Buzz social-network last week, Google
made a grievous mistake by populating public Google profiles with Gmail
contacts. Google’s Gmail group seems to be beating a good-natured retreat.

I defer to the policy argument made by Evgeny Morozov,
quoted above. And having recently taken a stand against the Chinese
government over the integrity of Gmail content, this is a mistake Google might have avoided.

I object, though, to the domestic arguments that presuppose Gmail should be as sequestered as a Microsoft Exchange
Server e-mail account. Google already reads your mail - to better target ads to
you, for one thing - and (unlike Facebook) it concisely tells you so (558
words).

Gmail is part of Google’s massive advertising platform.
While Twitter looks for a business model, Google has
one. It must have been very sweet indeed for Google to contemplate how Buzz
could come on like gang-busters, sparing users the confusion and uncertainty of
populating their Buzz networks person-by-person.

I liked the convenience! I’m a selective Gmail
user, so my Buzz network Day One was not that extensive; but having at least
some non-random followers and people to follow right away got me into the
experience, and I wasted zero time following celebrities and brands. (Tweetstats
by @dacort suggests to me that, by contrast, I spent 7 months learning how to
use Twitter before making it productive.) I also liked Buzz’s integration with
maps and location services. I had the heady sense that Google was about to push
social networking forward a few exciting cycles. If you ask me, it would be
cool if Google would parse the content of my Gmail, not just the address
lines, to suggest Buzz friends. Though I wouldn’t think of giving Google such
access to my work email.

If it was never reasonable for people to think Gmail
would work like work mail, the greater, prevailing truth turns out that it
wasn’t reasonable for Google to think it could treat Gmail contacts with any less
discretion than Outlook contacts.

Yesterday, Erik J. Heels published a great pair
of charts that show how Buzz jostled Gmail on the public/private continuum. I
don’t agree with Erik that Buzz does not belong with Gmail, but I think Erik’s
charts are illuminating and accurate.

I don't know how you feel about the recent, controversial Supreme Court decision, Citizens United v. Federal Election Commission, but it struck me this morning that we lawyers talk all the time as if corporations have points of view.

I was doing it just five minutes ago (that's what prompted this post): I was drafting an affidavit for a lawsuit (not something I do every day!), and found myself explaining the "motivations" of a corporate entity involved in a transaction.

And the corporation doesn't have to be humongous to throw its weight around. Startuppers believe this, and behave accordingly. For instance, founders, key hires and contractors will all, to a person, assign products of their intellectual labor to the venture, which, in turn, will own it, develop it, commercialize it, maybe eventually sell it, etc. And in these situations we are not buying into a partnership model, or a community property paradigm. No, we understand that, if the founders split or there is a " divorce," the company we created will keep right on going. Sometimes whether we like it or not!

Well, I know the Supreme Court is engaged in a different, somewhat rarefied discourse (Stanley Fish calls the opinions in the case "a virtual anthology of the limited repertoire of moves the saga [of First Amendment jurisprudence] affords"). But we live with our metaphors at all levels, don't we? Give them the force of law, and they sometimes even work their way into our culture and our everyday behavior.